Judgment:
RSA No.2825 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2825 of 1995 Date of decision:
01. 07.2014 Mohinder Singh … Appellant Versus. State of Punjab … Respondent CORAM:- HON’BLE MR. JUSTICE M. JEYAPAUL1 Whether the judgment should be reported in Digest ?.. Yes Present: Mr. M.S.Lobana, Advocate, for the appellant. Dr. Puneet Sekhon, Addl. AG Punjab. … M. JEYAPAUL, J:
1. A suit was filed by the appellant Mohinder Singh praying for declaration that he was senior to Nand Lal, the 5th defendant herein, and thereby, he was entitled to be promoted as Head Regulation Zamadar since 1978. Plaintiff also sought for all consequential emoluments, benefits and other privileges attached to the promotion post. Trial Court held that the plaintiff was entitled to a decree for declaration as sought for by him.
2. The State preferred an appeal. First appellate Court having adverted to the question of limitation for seeking the relief of declaration, dismissed the suit on the ground that the plea for declaration was hopelessly barred by limitation.
3. The only substantial question of law that arises for determination is whether the denial of promotion would give rise to recurring cause of action. Singh Jagjit 2014.07.07 14:48 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2825 of 1995 2 4. Learned counsel appearing for the appellant would vehemently submit that the representation made by the appellant before the competent Authority was not at all disposed of. The cause of action would arise only after the disposal of the application made by the appellant. Even otherwise, the denial of promotion would give rise to recurring cause of action. He cited a decision of the Hon'ble Supreme Court to support his plea.
5. On the other hand, learned Additional Advocate General, Punjab, appearing for the State would submit that by no stretch of imagination it can be construed that the denial of promotion would give rise to recurring cause of action. As no statutory right was provided, the pendency of representation made by the appellant at his own choice would not postpone the period of limitation. Even otherwise, the decision referred to by the counsel would not apply to the fact-situation in this case.
6. Appellant was allegedly over-looked and the 5th defendant Nand Lal who was junior to him was promoted in the month of July, 1978. No statutory right has been provided to prefer any appeal or make any representation before the competent Authority, aggrieved by the denial of promotion. On his own choice, appellant had preferred a representation before the Authority concerned. The Authority also has in fact recommended positively for his promotion as his junior was promoted.
7. The present suit is one for declaration. A declaratory relief should be sought before the competent Civil Court within three years from the date when the right to sue first accrued. Inasmuch as the cause of action in the present suit had arisen in the month of July, 1978, the suit should have been filed, as rightly held by the first appellate Court, in the month of July, 1981 Singh Jagjit 2014.07.07 14:48 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2825 of 1995 3 itself.
8. If at all any statutory appeal has been provided, the disposal of such an appeal would postpone the period of limitation. Admittedly, no statutory appeal has been provided to redress the grievance of denial of promotion.
9. In S.S. Rathore v. State of Madhya Pradesh 1989(4) Supreme Court Cases 582, it has been held as follows:- “ 22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation.”
. As per the above ratio laid down by the Hon'ble Supreme Court, the pendency of the representation which was not statutorily recognized would not postpone the period of limitation. Only in a case where a statutory appeal has been presented, the period of limitation will stand postponed till the disposal of the same. Even if such an appeal is pending, the aggrieved person will have to approach the Competent Court on the expiry of six months' time till such time such an appeal/representation has been made.
10. Applying the above ratio, it is held that the present suit filed for declaration is hopelessly barred by limitation in the month of July 1981 itself.
11. Of course, learned counsel appearing for the appellant referred to Singh Jagjit 2014.07.07 14:48 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2825 of 1995 4 a decision of the Hon'ble Supreme Court in M.R. Gupta v. Union of India and others 1995(5) SCC628 it has been held as follows:- “ 5. ... ... ... The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave ruse to a recurring cause fo action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause fo action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. ... ... ... Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs, the pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and he bar of limitation.”
. That was a case where improper pay fixation was under challenge. The Hon'ble Supreme Court held therein that such a lapse on the part of the Department in fixing the pay of the employee gives rise to recurring cause of action. Therefore, the case of termination of service dealt in S.S. Rathore's case(supra) was distinguished. But at any rate, it is found that the Hon'ble Supreme Court in M.R. Gupta's case (supra) has made an observation that the determination of promotion was subject to bar of limitation set up by the other side.
12. In my considered view, the denial of promotion would not give Singh Jagjit 2014.07.07 14:48 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2825 of 1995 5 rise to recurring cause of action. Therefore, applying the period of limitation contemplated under Article 58 of the Limitation Act, 1963, I find that the suit for declaration filed by the plaintiff is hopelessly barred by limitation. The substantial question of law is answered accordingly. The appeal is dismissed. ( M. JEYAPAUL ) July 01, 2014 JUDGE JS Singh Jagjit 2014.07.07 14:48 I attest to the accuracy and integrity of this document High Court, Chandigarh